Judgment of the Civil Service Tribunal (Second Chamber) of 13 November 2014. Emil Hristov v European Commission and European Medicines Agency (EMA). Case F-2/12.

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

13 November 2014 (*)

(Civil service — Procedure for selection and appointment of the Executive Director of a regulatory agency — European Medicines Agency (EMA) — Two‑stage selection procedure — Pre-selection within the Commission — Appointment by the EMA’s Management Board — Obligation on the EMA’s Management Board to choose the Executive Director from among the candidates short-listed by the Commission — Action for annulment — Composition of the pre-selection panel — Combination of functions of member of the pre-selection panel and member of the EMA’s Management Board — Candidates who are members of the EMA’s Management Board included on the list of candidates short-listed by the Commission — Appointment of the candidate who is a member of the EMA’s Management Board — Duty of impartiality — Infringement — Annulment — Action for damages — Non-material damage separable from the unlawfulness which is the basis for the annulment — Proof — None)

In Case F‑2/12,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

Emil Hristov, residing in Sofia (Bulgaria), represented by M. Ekimdjiev, K. Boncheva and G. Chernicherska, lawyers,

applicant,

v

European Commission, represented initially by J. Currall and D. Stefanov, and subsequently by J. Currall and N. Nikolova, acting as Agents,

and

European Medicines Agency (EMA), represented initially by V. Salvatore and T. Jablonski, and subsequently by J. Currall and N. Nikolova, acting as Agents,

defendants,

THE CIVIL SERVICE TRIBUNAL (Second Chamber)

composed of M. I. Rofes i Pujol (Rapporteur), President, K. Bradley and J. Svenningsen, Judges,

Registrar: J. Tomac, Administrator,

having regard to the written procedure and further to the hearing on 17 October 2013,

gives the following

Judgment

1        By application lodged at the Registry of the Tribunal on 9 January 2012, Mr Hristov seeks, first, annulment of a number of decisions adopted by the European Commission in connection with the procedure for the selection of the Executive Director of the European Medicines Agency (EMA) and the decision of the EMA’s Management Board of 6 October 2011 appointing that Executive Director and, secondly, compensation for the non-material damage allegedly sustained as the result of the adoption of those decisions.

 Legal context

2        Article 64(1) of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1), provides as follows:

‘The Executive Director shall be appointed by the Management Board, on a proposal from the Commission, for a period of five years on the basis of a list of candidates proposed by the Commission following a call for expressions of interest published in the Official Journal of the European Union and elsewhere. Before appointment, the candidate nominated by the Management Board shall be invited forthwith to make a statement to the European Parliament and to answer any questions put by its Members. …’

3        Article 65 of Regulation No 726/2004 provides:

‘…

The members of the Management Board shall be appointed in such a way as to guarantee the highest levels of specialist qualifications, a broad spectrum of relevant expertise and the broadest possible geographic spread within the European Union.

2. The members of the Management Board shall be appointed on the basis of their relevant expertise in management and, if appropriate, experience in the field of medicinal products for human or veterinary use.

3. Each Member State and the Commission shall appoint their members of the Management Board as well as an alternate who will replace the member in his absence and vote on his behalf.

…

7. The Management Board shall adopt its rules of procedure.

…’

4        Article 66 of Regulation No 726/2004 provides that the EMA’s Management Board is to appoint the Executive Director.

5        Article 75 of Regulation No 726/2004 provides:

‘The staff of the [EMA] shall be subject to the rules and regulations applicable to officials and other staff of the European Communities. The [EMA] shall exercise in respect of its staff the powers devolved to the Appointing Authority.

The Management Board, in agreement with the Commission, shall adopt the necessary implementing provisions.’

6        Under Article 65(7) of Regulation No 726/2004, the EMA’s Management Board adopted its rules of procedure on 13 December 2007, which was subsequently amended several times. In the version of 10 December 2009, applicable in the dispute, Article 11(3) of the Rules of Procedure provides:

‘Members [of the Management Board] shall declare, at each meeting, any specific interests which could be considered to be prejudicial to their independence with respect to the items on the agenda. These declarations shall be made available to the public.’

7        The Commission Guidelines SEC(2009) 27/2 of 12 January 2009 on the selection and appointment of directors of regulatory agencies, executive agencies and joint undertakings (‘the Guidelines’), lay down the various stages in the procedure for the selection of directors for most of the agencies of the European Union. With regard to the regulatory agencies, including the EMA, they provide that the Executive Director is to be appointed by the Management Board from a list of candidates proposed by the Commission.

8        Point 7 of the Guidelines, entitled ‘Pre-selection’, provides:

‘In standard cases where the Commission is responsible for drawing up the short-list of candidates …, the pre-selection procedure is carried out by a pre-selection panel, which must identify the best qualified candidates and forward a draft list to the Consultative Committee on Appointments …

The parent [Directorate-General] sets up a pre-selection panel on the basis of a proposal from the Human Resources Unit of the parent [Directorate-General]. The members from the Commission are appointed by the Director General.

7.1 Pre-selection panel

–        Membership

The pre-selection panel is composed of three senior management officials from the Commission, who must have at least the same grade and function level as the Director of the agency.

As a general rule, the pre-selection panel comprises:

–        the Director General of the parent [Directorate-General] or the Deputy Director General of that [Directorate-General], who takes the chair;

–        a Director from the parent [Directorate-General];

–        a Director from another Directorate-General, preferably from the same family as the parent [Directorate-General], who, where possible, should possess specific expertise in the agency’s field of activity;

…

–        Observer

Where the Director is being appointed by the Management Board or the Council [of the European Union] those bodies may appoint an observer to represent them on the pre-selection panel.

…

7.2 Screening of the applications

…

7.2.1 Review of the eligibility criteria and preparation of an evaluation grid by the [pre-selection] panel

The pre-selection panel draws up a check-list and reviews the eligibility criteria.

The pre-selection panel also draws up an evaluation grid based on the selection criteria set out in the vacancy notice. That grid makes it possible to compare the candidate’s profile with the specific competencies required for the post, as stated in the vacancy notice.

…

At the end of that assessment, the pre-selection panel draws up a short-list of the candidates who are considered to correspond most closely to the profile sought and who possess the qualifications set out in the vacancy notice.

…

7.2.4 The pre-selection panel’s report

The pre-selection panel prepares a full report providing detailed information on each interview, a qualitative assessment of all the candidates, and a proposed list of the candidates considered to be best qualified.

The report is drawn up by the chair of the pre-selection panel. …

The panel’s secretariat sends the report to the General Secretariat in its capacity as chair of the [Consultative Committee on Appointments], to the secretariat of the [Consultative Committee on Appointments], to [the Directorate-General for Personnel and Administration] and to [the Commissioner] for the parent [Directorate-General].

…’

9        Point 8 of the Guidelines, entitled ‘Appearance before the Consultative Committee on Appointments … and interview with [the Commissioner(s)]’, reads as follows:

‘In view of the role played by the Commission in procedures for the appointment of directors, the [Consultative Committee on Appointments], as the guarantor of recruitment of the best-qualified people for senior management, has the task of submitting to the Commission a list of the most suitable candidates for the post of agency director.

…

8.1 Composition of the [Consultative Committee on Appointments]

For the selection of agency directors, […] the [Consultative Committee on Appointments] comprises the following members:

–        the Director-General for Personnel and Administration, who takes the chair;

–        the Head of Cabinet of [the Commissioner] responsible for Personnel and Administration;

–        the Permanent Rapporteur for the [Consultative Committee on Appointments];

–        the Rapporteur appointed for the selection procedure;

–        the Deputy Secretary-General;

–        the Director-General of the parent [Directorate-General] …;

…

8.2 Opinion of the [Consultative Committee on Appointments] and assessment centre …

8.2.1 [First] stage in the procedure in the [Consultative Committee on Appointments]: preliminary opinion

(a) Procedure

The secretariat of the [Consultative Committee on Appointments] sends the report and the draft list of candidate[s] prepared by the pre-selection panel to the relevant members of the [Consultative Committee on Appointments] in order for them to give their opinion by means of a written procedure.

There will be three possible outcomes:

–        approval of the findings of the report by the [Consultative Committee on Appointments], including the list of candidates proposed by the pre-selection panel;

–        approval of the findings of the report by the [Consultative Committee on Appointments] with amendment of the list of candidates proposed by the pre-selection panel. The [Consultative Committee on Appointments] may reserve the right to add to the pre-selection panel’s list candidates who have been interviewed by that panel but not short-listed by it, or to eliminate candidates;

–        objection by the [Consultative Committee on Appointments] or one of its members to the findings of the pre-selection report. In that case, the secretariat of the [Consultative Committee on Appointments] may ask the chair of the pre-selection panel for written clarification and/or additional information. If the objection is maintained, the [Consultative Committee on Appointments] may include an item concerning the short-list of candidates on the agenda for one of its weekly meetings. The Director General of the parent [Directorate-General] and the rapporteur will be invited to attend in order to discuss the pre-selection panel’s report.

Once the [Consultative Committee on Appointments] has approved the report and the draft list of candidates short-listed by the pre-selection panel, it delivers a preliminary opinion.

(b) Informing the candidates

The secretariat of the [Consultative Committee on Appointments] invites the candidates who have been short-listed to attend an interview with the [Consultative Committee on Appointments] and tests at an assessment centre. …

At the same time, the secretariat of the [Consultative Committee on Appointments] notifies the opinion delivered by the [Consultative Committee on Appointments] to the candidate(s) interviewed by the pre-selection panel but not short-listed for interview by the [Consultative Committee on Appointments].

8.2.2 Assessment centre

Candidates short-listed for interview by the [Consultative Committee on Appointments] are invited to attend assessment tests with an external recruitment consultant …

8.2.3 [Second] stage in the procedure in the [Consultative Committee on Appointments]: final opinion

The [Consultative Committee on Appointments] interviews the candidates listed in its preliminary opinion.

Following those interviews, the [Consultative Committee on Appointments] delivers its final opinion in the form of a draft list of candidates whose profile appears to it to be best suited to the post of agency director, containing, where possible, the names of more than one candidate. The opinion of the [Consultative Committee on Appointments], signed by its chair, is sent to the Cabinets of the [Commissioner] responsible for Personnel and Administration and the [Commissioner for the parent Directorate-General] as the basic document on which to conduct their interviews.

…

8.3 Interviews by [Commissioner(s)]

The [Commissioner(s) from the parent Directorate-General] interview the candidates short-listed by the [Consultative Committee on Appointments] in its final opinion.

The [Commissioner] responsible for Personnel and Administration may also, if he so wishes, interview short-listed candidates or any other candidate whom he considers eligible. In doing so, he must act on the basis of the published selection criteria and the commonly accepted principles governing the appointment of senior management officials of the Commission.

…’

10      Point 10 of the Guidelines, entitled ‘Adoption of the short-list of candidates and appointment by the appointing authority’, reads as follows:

‘10.1 Adoption of the proposal

Where candidates are interviewed by [the Commissioner(s) for the parent Directorate-General], the latter will ask the cabinet of the [Commissioner] responsible for Personnel and Administration to submit the short-list of candidates to the Commission.

The Commission adopts a list of candidates in the context of miscellaneous administrative and budgetary matters […], which is forwarded to the appointing authority by the [Commissioner for the parent Directorate-General] …

[…]

10.3 Interviewing of candidates by the appointing authority

The appointing authority — the management board for most agencies … — interviews the candidates who appear on the candidates’ short-list. …

10.4 Appearance before the European Parliament

Where the basic regulation so provides, before appointment, the candidate nominated by the Management Board may be invited to make a statement before the competent committee(s) of the European Parliament … and answer questions from its/their members.

At the present time, the directors of the following seven agencies must appear before the European Parliament before their appointment: … [EMA] …

10.5 Appointment of candidates by the appointing authority

Following those interviews and any appearance before the competent committee(s) of the European Parliament …, the appointing authority will appoint the candidate which [it] has nominated for the post of agency Director.

…’

11      The notice of the vacancy for the Executive Director of the European Medicines Agency (EMA) (Grade AD 15) — COM/2010/10286 (OJ 2010 C 296 A, p. 1, ‘the vacancy notice in question’) provides:

‘…

We propose

The Executive Director is the legal representative and public face of the [EMA] and is accountable to the Management Board.

…

Selection and appointment

A pre-selection panel will be set up for the selection process. This panel will invite those candidates who have the best profile for the specific needs to an interview, selected on the basis of their merits relevant to the post according to the criteria set out above. Candidates short-listed by the pre-selection panel will then be called for an interview with the Commission’s Consultative Committee on Appointments … and will have to participate in an evaluation at an assessment centre run by external recruitment consultants. Candidates, who have been short-listed by the CCA, will afterwards be interviewed by the relevant Commissioners.

Following these interviews, the Commission adopts a short list of the most suitable candidates, which will be communicated to the Management Board of the EMA. The latter will interview the short-listed candidates and nominate the Director from among them. Inclusion on the short-list does not guarantee appointment.

Candidates may be required to undergo further interviews and/or tests in addition to those indicated above.

Before appointment, the nominated applicant will be invited to make a statement before the European Parliament and to answer questions put by members of that institution.

…

Important information for candidates

Candidates are reminded that the work of the different selection committees is confidential. It is forbidden for candidates to make direct or indirect contact with their members or to ask anybody else to do so on their behalf.

…’

 Background to the dispute

12      The applicant was a member of the EMA’s Management Board from January 2007 to April 2009, as the representative of the Member State of which he is a national.

13      On 10 December 2009 Mr A, a member of the EMA’s Management Board, was appointed by the Board to represent it as an observer on the pre-selection panel, in accordance with point 7.1 of the Guidelines. Under that provision, the pre-selection panel is composed of three senior management officials from the Commission, who must have at least the same grade and function level as the Director of the EMA.

14      On 15 January 2010 the Commission published in the Official Journal of the European Union the vacancy notice for Executive Director (Grade AD 14) of the European Medicines Agency (EMEA) (OJ 2010 C 9 A, p. 1). The post offered was a temporary post at Grade AD 14 and the time-limit for applying for it was 17 February 2010. The applicant applied for the post on 16 February 2010.

15      On 31 March 2010 the pre-selection panel examined the applications received, in accordance with point 7.2.1 of the Guidelines. At that point the panel considered that the vacancy notice had not been adequately advertised. Subsequently, the Commission decided to publish the vacancy notice again.

16      By e-mail of 14 June 2010 from the Deputy Head of the Human Resources Unit of the Commission’s Directorate-General (DG) for Health and Consumers (‘DG Health’), the applicant was informed that the selection procedure would be reopened in order to advertise it more widely and that a new vacancy notice would be published around 25 June 2010, which would set a new time-limit of four weeks for submitting an application. The same e-mail stated that there was no need for the applicant to submit a fresh application as his previous application was still valid.

17      On 12 September 2010 the applicant sent the Deputy Head of the Human Resources Unit of DG Health an e-mail enquiring as to the progress of his application. The following day that person informed the applicant that he would be kept informed about the progress of the procedure.

18      On 7 October 2010 the EMA’s Management Board met. That meeting, which was attended, inter alia, by Mr B and Mr C, acting as chair and member of the Management Board, and member of the Management Board, respectively, adopted the decision to initiate the procedure for the selection of the Executive Director of the EMA, a decision which set out the various stages of that procedure and stated that it would be published on the EMA website.

19      On 30 October 2010 the Commission published the vacancy notice in question. Candidates were required to satisfy the same selection and eligibility criteria as were contained in the earlier vacancy notice, with the exception of one selection criterion. Whereas the first vacancy notice stated that candidates must have ‘a proven record of managing staff at a senior level in a multicultural environment’, the vacancy notice in question called for ‘a proven record of managing large teams at a senior level[,] experience gained in a multicultural environment [being] considered an advantage’.

20      The applicant was informed of publication of the vacancy notice in question by an e-mail from the Deputy Head of the Human Resources Unit of DG Health of 3 November 2010. In that e-mail, the latter suggested that the applicant should resend the supporting documents that he had attached to his application in response to the first vacancy notice in order to bring his professional data up to date, which the applicant did by letter of 23 November 2010, received by the Commission on the following day.

21      On 1 November 2010 Mr B applied for the post of Executive Director. On 23 November 2010 Mr C did likewise.

22      In that instance, the pre-selection panel was composed of the chair and three other members. The chair of the pre-selection panel was taken by the Director-General of DG Health, which, being the EMA’s parent Directorate-General, was responsible for supervising its activities. Of the three other members, two were officials of DG Health and the third an official of the Directorate-General for Research and Innovation. The chair of the pre-selection panel, namely Ms D, and one of the two officials from DG Health were also members of the EMA’s Management Board as representatives of the Commission, in accordance with Article 65(3) of Regulation No 726/2004.

23      On 12 January 2011 the pre-selection panel examined the 62 applications received for the post of Executive Director of the EMA. Following that examination, the pre-selection panel decided to call for interview nine candidates, including the applicant. One of the nine candidates, however, was excluded by the pre-selection panel before attending the interview.

24      On 8 February 2011 the applicant and the seven other short-listed candidates were interviewed by the pre-selection panel. On that occasion the panel used the evaluation grid which it had prepared.

25      At the end of the interviews the eight candidates were given a mark out of 100 and rated in ascending order of the marks awarded. The applicant obtained the lowest score, 61 marks out of 100. The seven other candidates obtained between 69 and 85 marks out of 100.

26      On 7 March 2011 the pre-selection panel drew up its report, which provided information on each of the candidates interviewed, and decided to recommend the applications of the four candidates who obtained the best results (between 75 and 85 marks out of 100), who included Mr B and Mr C.

27      Having received the pre-selection panel’s report, the Commission’s Consultative Committee on Appointments (‘the CCA’) also examined the files on the 62 applications which had been received for the post of Executive Director of the EMA. On completion of that examination, the CCA delivered, on 14 March 2011, the preliminary opinion provided for in point 8.2.1 of the Guidelines. According to the CCA’s preliminary opinion, only the four candidates recommended by the pre-selection panel were to be invited to take part in tests at the assessment centre and attend an interview with the CCA. By letter of that date, the acting secretary of the CCA informed the applicant that the CCA had decided not to depart from the opinion of the pre-selection panel, which was that other candidates offered a better combination of the qualifications and experience required by the vacancy notice in question, and, consequently, not to invite him to attend an interview.

28      The four candidates recommended by the pre-selection panel, after taking the assessment tests, were called for an interview with the CCA, which took place on 7 April 2011. That same day, the CCA delivered an opinion in which it stated that the four candidates recommended by the pre-selection panel fulfilled the conditions required in order to carry out the duties of Executive Director of the EMA.

29      The Commissioner for Health and Consumer Protection (‘the portfolio Commissioner’) interviewed the four candidates recommended by the pre-selection panel and by the CCA. Subsequently, DG Human Resources and Security proposed to the members of the Commission, with the agreement of the President of the Commission and the portfolio Commissioner, that those four candidates should be recommended to the EMA’s Management Board.

30      On 20 April 2011, the Commission formally decided to propose to the EMA’s Management Board a list of the four candidates recommended by the pre-selection panel and by the CCA (‘the Commission’s decision of 20 April 2011’).

31      On 5 May 2011, the EMA’s Management Board held an extraordinary meeting to choose the new Executive Director of the EMA. At that meeting, the procedure for selecting the Executive Director, which had been adopted on 7 October 2010, was amended and the four candidates proposed by the Commission were interviewed. Since no agreement could be reached on one name it was decided that the EMA’s Management Board would meet again the next month to decide between the four candidates proposed by the Commission.

32      By letter dated 27 May 2011, registered by the Commission on 9 June 2011, the applicant lodged a complaint ‘against the way in which the competition [had] been run [within the Commission]’.

33      On 8 June 2011, the EMA’s Management Board chose Mr C to become the Executive Director of the EMA.

34      On 13 July 2011, Mr C was interviewed by the European Parliament Committee on the Environment, Public Health and Food Safety.

35      By letter of 22 September 2011, the President of the European Parliament informed the EMA that, following the interview which Mr C had with the abovementioned committee, the Parliament had endorsed the appointment of Mr C as the new Executive Director of the EMA.

36      By decision of the Commission of 6 October 2011, the applicant’s complaint, lodged by letter of 27 May 2011, was rejected.

37      By decision also adopted on 6 October 2011, the EMA’s Management Board appointed Mr C to be the Executive Director (‘the Management Board’s decision of 6 October 2011’).

38      By letter of 6 January 2012, sent on the same day by fax and by post, the applicant lodged a complaint with the EMA’s authority empowered to conclude contracts of employment against the Management Board’s decision of 6 October 2011.

39      By application lodged at the Registry of the Tribunal on 9 January 2012, the applicant applied, by way of interim relief, for the suspension of the Management Board’s decision of 6 October 2011. That application for interim relief was dismissed by order of 20 March 2012 in Hristov v Commission and EMA (F‑2/12 R, EU:F:2012:35).

40      By decision of the EMA’s authority empowered to conclude contracts of employment of 16 May 2012, the complaint of 6 January 2012 was dismissed.

 Forms of order sought and procedure

41      In his application, the applicant claims in essence that the Tribunal should:

–        annul the pre-selection panel’s decision, brought to his knowledge by the letter of 14 March 2011, containing a list of four candidates which did not include himself;

–        annul the CCA’s decision of 14 March 2011 to call for interview only the four candidates named on the pre-selection panel’s list;

–        annul ‘the [CCA’s] decision of 14 March 2011’ endorsing the pre-selection panel’s recommendations;

–        annul the Commission’s decision of 20 April 2011;

–        annul the Commission’s decision of 6 October 2011 dismissing the complaint of 27 May 2011;

–        annul the Management Board’s decision of 6 October 2011;

–        order fair compensation to be paid for the non-material damage sustained;

–        order the Commission and the EMA to pay the costs incurred during the administrative proceedings and the litigation;

–        organise another ‘competition’ in compliance with lawful procedure.

42      In its defence, the Commission contends that the Tribunal should:

–        dismiss the action;

–        order the applicant to pay all the costs of the proceedings.

43      In its defence, the EMA contends that the Tribunal should:

–        dismiss the action as manifestly inadmissible;

–        in the alternative, dismiss the action as unfounded;

–        order the applicant to pay the costs.

44      A second exchange of written pleadings took place, confined to objections of inadmissibility raised by the Commission and the EMA. In its rejoinder, the EMA withdrew its first head of claim, whereby it sought that the action should be declared manifestly inadmissible.

45      By letters from the Registry of 23 July 2013, the parties were asked to respond to a number of measures of organisation of the procedure. The parties complied with that request within the prescribed period.

46      In his response to the measures of organisation of the procedure, the applicant stated that by his third head of claim for annulment he was actually claiming that the Tribunal should annul the CCA’s decision endorsing the pre-selection panel’s recommendations, adopted on 7 April 2011, and not 14 March 2011 as incorrectly stated in the application.

47      In response to the measures of organisation of the procedure, the Commission provided several documents, written in languages other than the language of the case, which had thus far not been communicated to the applicant. Since the applicant had not been able to familiarise himself with some of those documents before the hearing, the Tribunal, in response to the applicant’s request made at the hearing, asked the Commission to provide, no later than 18 November 2013, translations into Bulgarian or, where appropriate into English, of certain documents which it had attached to its statement in response to the measures of organisation of the procedure, inter alia, of certain passages from the Guidelines.

48      At the hearing, the applicant also produced further evidence, which the Tribunal decided to place on the file. At the end of the hearing, the Tribunal decided not to close the oral procedure.

49      By document of 18 November 2013, the Commission complied with the Tribunal’s request to produce certain translations.

50      By document of 16 December 2013, the applicant submitted observations on the Commission’s document of 18 November 2013.

51      By letter from the Registry of 30 January 2014, the Commission and the EMA were requested to reply to the applicant’s document of 16 December 2013, which the Commission did by document of 13 February 2014.

52      On 5 March 2014 the Tribunal closed the oral procedure.

 Law

1.     The claim for directions

53      As regards the ninth head of claim, seeking that the Tribunal should order another competition to be organised for recruitment of the Executive Director of the EMA, according to settled case-law, it is not for the Tribunal to give directions to an institution of the European Union apart from the general obligation, set out in Article 266 TFEU, for the institution whose act has been declared void to take the necessary measures to comply with the judgment annulling it (judgment in Pleijte v Commission, F‑91/08, EU:F:2010:13, paragraph 29 and the case-law cited).

54      Since the applicant’s claim referred to above constitutes a claim for directions, it must be rejected as inadmissible.

2.     The claims for annulment

 Admissibility

 Arguments of the parties

55      The Commission contends that the first three heads of claim are inadmissible since the three decisions contested constitute internal preparatory acts for the Commission’s decision of 20 April 2011 and are not therefore acts having an adverse effect which may be the subject of an action. As regards the fifth head of claim, the Commission contends that the decision referred to is not an autonomous act that is open to challenge. As regards the sixth head of claim, made against the Management Board’s decision of 6 October 2011, it is inadmissible since it is directed against the Commission, whereas that decision was adopted by the EMA and not by the Commission.

56      The applicant argues in response that, according to the vacancy notice in question, the Commission is required to comply with the recommendations of the pre-selection panel and the CCA. Consequently, the decisions adopted by the pre-selection panel and the CCA, the annulment of which he seeks in the first three heads of claim, are binding on the Commission and do not, he alleges, constitute preparatory acts for the Commission’s decision of 20 April 2011. The applicant adds that, although it would have been possible for the Commission not to follow the decisions of the pre-selection panel and the CCA if it had found a manifest error of assessment and drafted a reasoned opinion to that effect, none the less, in the present case, despite the existence of a manifest error of assessment, the Commission did not draft such a reasoned opinion. Consequently, in the circumstances of the present case, it must be held that the first three heads of claim for annulment are admissible.

57      As regards his fifth head of claim, seeking annulment of the Commission’s decision of 6 October 2011 rejecting his complaint of 27 May 2011, the applicant states that that decision sets out the grounds of the pre-selection panel’s decision not to include him on the short-list. That Commission decision also contains facts of which he was unaware before he received the letter of 14 March 2011 from the acting secretary of the CCA and, therefore, supplements the CCA’s decision of 14 March 2011 not to depart from the opinion of the pre-selection panel and to endorse that panel’s recommendations. Accordingly, he considers that the Commission’s decision of 6 October 2011 dismissing the complaint is autonomous and must therefore be subject to a review of legality which it is for the Tribunal to conduct.

 Findings of the Tribunal

58      First, as regards the first three heads of claim, it should be noted that, according to settled case-law, in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, an act is open to review only if it is a measure definitively laying down the position of the institution with regard to the applicant and not a provisional measure intended to pave the way for that final decision. The latter, although they may influence the content of the measure definitively laying down the position of the institution, cannot be the subject of an independent action and must be challenged in support of an action directed against that act (see judgments in N v Parliament, F‑71/08, EU:F:2009:150, paragraph 28, and Pleijte v Commission, EU:F:2010:13, paragraph 27; order in Possanzini v Frontex, F‑61/11, EU:F:2012:146, paragraphs 42 and 43).

59      In the present case, the Tribunal notes, first, that Article 64 of Regulation No 726/2004 provides that the Executive Director of the EMA is to be appointed by the EMA’s Management Board from a list of candidates proposed by the Commission. Secondly, the Tribunal observes that, according to the Guidelines, the selection procedure for the Executive Director of the EMA is to take place in two stages. The first stage takes place within the Commission and is divided into several stages. First, a pre-selection panel is set up in order to prepare a draft list of candidates considered to be best qualified. That draft list is then sent to the CCA for its opinion. The CCA delivers a preliminary opinion on the candidates short-listed by the pre-selection panel and then itself draws up a list of candidates, which may differ from the list drawn up by the pre-selection panel. After the candidates short-listed by the CCA have undergone an assessment test with an external recruitment consultant, the CCA interviews them. Following those interviews, the CCA delivers its final opinion together with the list of candidates it considers most suitable. That final opinion of the CCA provides the basic document for the portfolio Commissioner and, where appropriate, the Commissioner responsible for Personnel and Administration to use for their interviews. Lastly, the portfolio Commissioner and, where appropriate, the Commissioner responsible for Personnel and Administration interview the candidates short-listed by the CCA in its final opinion or, in the case of the Commissioner responsible for Personnel and Administration, any other candidate whom he considers suitable. Next the portfolio Commissioner sends to the Commission the short-list of candidates, and it is then the Commission’s turn to adopt a list of candidates whom it recommends, which the portfolio Commissioner sends to the appointing authority, in the present case, the EMA’s Management Board.

60      The second stage takes place mainly before the EMA’s Management Board. After interviewing the candidates on the list forwarded by the Commission, the EMA’s Management Board nominates one of them. The nominated candidate is then invited to make a statement before the competent committee of the European Parliament. After the European Parliament has endorsed the candidate nominated by the EMA’s Management Board, the EMA’s Management Board appoints that candidate as the Executive Director.

61      It is therefore apparent from Article 64 of Regulation No 726/2004, further developed by the Guidelines, that the EMA’s Management Board must select the Executive Director only from among the candidates proposed by the Commission. Consequently, it is the Commission’s decision of 20 April 2011 adopting a list of four candidates to be recommended to the EMA’s Management Board which defined the Commission’s position and circumscribed the freedom of choice of the EMA’s Management Board in so far as it definitively prevented the applicant from taking part in the subsequent stages of the selection procedure. Therefore, the Commission’s decision of 20 April 2011 constitutes an act adversely affecting the applicant (see, by analogy, judgment in Pleijte v Commission, EU:F:2010:13, paragraph 28).

62      It also follows from the Guidelines that the CCA is not bound by the pre-selection panel’s short-list of candidates when drawing up its own list of candidates to interview and that it may decide not to interview short-listed candidates or, on the other hand, to interview candidates who do not appear on the pre-selection panel’s list. Nor, according to the Guidelines, are the Commissioners responsible for drawing up a list of candidates to be proposed to the Commission bound by the CCA short-list of candidates, since the Commissioner responsible for Personnel and Administration may interview any other candidate whom he considers suitable.

63      It follows that the pre-selection panel’s decision adopting a list of four candidates for recommendation, the CCA’s decision of 14 March 2011 to call for interview only the four candidates recommended by the pre-selection panel and the CCA’s decision of 7 April 2011 to endorse the recommendations of the pre-selection panel by no means determined the Commission’s position but constituted preparatory acts for the Commission’s decision of 20 April 2011. Hence, according to the case-law cited in paragraph 58 above, the first three heads of claim, seeking annulment of those decisions, must be rejected as inadmissible.

64      Secondly, with regard to the fifth head of claim, seeking annulment of the Commission’s decision of 6 October 2011 rejecting the complaint of 27 May 2011, it is settled case-law that the administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made. It has been held on several occasions that an express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (judgments in Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32, and Arguelles Arias v Council, F‑122/12, EU:F:2013:185, paragraph 38).

65      Since, under the system laid down in the Staff Regulations, the person concerned must submit a complaint against the decision which he is contesting and then appeal against the decision rejecting his complaint, the Court of Justice of the European Union has held that the action is admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided, however, that the complaint and the appeal were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). However, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made (see, to that effect, judgment in Vainker v Parliament, 293/87, EU:C:1989:8, paragraphs 7 and 8). That may, in particular, be the case where it finds that the decision rejecting the complaint, in some cases because it is implied, is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second (judgments in Adjemian and Others v Commission, EU:T:2011:506, paragraph 33, and Arguelles Arias v Council, EU:F:2013:185, paragraph 39).

66      In the present case, the Tribunal finds that the applicant does not identify, in his complaint of 27 May 2011, the measures which he is contesting. It is clear from the documents in the case that, following the letter of 14 March 2011 from the acting secretary of the CCA informing him inter alia that he was not being called for interview, the applicant did not receive a copy of the CCA’s decision of 7 April 2011, in which the CCA confirmed the draft list of the four candidates proposed by the pre-selection panel, or a copy of the Commission’s decision of 20 April 2011. On 27 May 2011 the applicant only learnt therefore, from the abovementioned letter of 14 March 2011, that he had not been short-listed by the pre-selection panel, that the CCA would not be calling him for interview and that according to the CCA his application had been unsuccessful.

67      Consequently, the applicant must be regarded as challenging, in his complaint of 27 May 2011, the decision by which he was eliminated from the first stage of the selection procedure, namely the stage which took place within the Commission. Since the pre-selection panel’s decision adopting a draft short-list of four candidates, the CCA’s decision of 14 March 2011 to call for interview only the four candidates named on the pre-selection panel’s draft list and the CCA’s decision of 7 April 2011 not to depart from the pre-selection panel’s opinion but to endorse its recommendations are all preparatory acts for the Commission’s decision of 20 April 2011 (see paragraph 63 above), it must be understood, as the Commission moreover admits in its statement of 2 September 2013, produced in response to the measures of organisation of procedure, that in that complaint the applicant is challenging the Commission’s decision of 20 April 2011.

68      In that regard, the Tribunal observes that the Commission’s decision of 6 October 2011 dismissing the complaint of 27 May 2011 contains detailed information, inter alia certain facts, concerning the preparatory acts for the Commission’s decision of 20 April 2011, and the reasons on the basis of which the Commission adopted that decision. Therefore, the conclusion must be drawn that the Tribunal should examine the claim for annulment of the Commission’s decision of 20 April 2011, as clarified by the decision of 6 October 2011 dismissing the complaint of 27 May 2011 (see, to that effect, judgment in Eveillard v Commission, T‑258/01, EU:T:2004:177, paragraphs 31 and 32).

69      Thirdly, as regards the sixth head of claim, seeking annulment of the Management Board’s decision of 6 October 2011, that claim is inadmissible in so far as it is directed against the Commission since the latter is not the author of that decision.

 Substance

70      It is appropriate to examine first of all the fourth head of claim, seeking annulment of the Commission’s decision of 20 April 2011, and then the sixth head of claim, directed against the Management Board’s decision of 6 October 2011.

 The fourth head of claim: annulment of the Commission’s decision of 20 April 2011

71      In support of that claim for annulment the applicant puts forward four pleas, formally presented as alleging, respectively:

‘[–]      infringement of Article 30 of the Staff Regulations, infringement of Article 3 of Annex III to the Staff Regulations, misuse of powers, abuse of procedure and infringement of the principles of transparency, impartiality, absence of any conflict of interests, sound administration, equality and division of responsibilities;

[–]      infringement of Article 27 of [the Staff Regulations], failure to follow the selection procedure, infringement of the legal framework as it emerges from publication of the vacancy notice [in question], infringement of the principle of division of responsibilities …, infringement of the principles of impartiality, sound administration, objectivity in the assessment of candidates, absence of any conflict of interests, … equality and the absence of misuse of powers;

[–]      infringement of the principles of division of responsibilities, equality, absence of any misuse of powers or of any abuse of procedure;

[–]      manifest error of assessment’.

72      The Tribunal finds, from reading the considerations relating to the first plea, that under cover of that first plea the applicant pleads infringement of the rules on the composition of the pre-selection panel. That plea is divided into two parts. The first concerns the appointment of an even number of members of the pre-selection panel; the second concerns the combination of the functions of member of the EMA’s Management Board and member of the pre-selection panel.

73      The Tribunal also finds that, under cover of his second plea, the applicant claims, first, an error of law in that the pre-selection panel did not automatically eliminate the two candidates who were members of the EMA’s Management Board and, secondly, infringement of the vacancy notice in question in that the pre-selection panel committed irregularities when laying down the assessment criteria, when examining the candidates’ files and when interviewing the applicant.

74      Likewise, it is apparent from the applicant’s pleadings that, in his third plea, he challenges the Commission’s argument that the Commission was entitled not to approve the draft list drawn up by the pre-selection panel and to ask for it to be amended. That plea must therefore be interpreted as alleging an error of law in that the Commission wrongly considered that it was free not to follow the pre-selection panel’s decision adopting the draft list of candidates for recommendation.

75      By his fourth plea, the applicant contends that a manifest error of assessment was committed regarding his capabilities, as a consequence of which other candidates were given precedence over him.

76      The Tribunal will examine first of all the second part of the first plea, based on combination of the functions of member of the EMA’s Management Board and member of the pre-selection panel.

–       Arguments of the parties

77      The applicant contends that the fact that the chair of the pre-selection panel, Ms D, and another member of the pre-selection panel, Mr E, were also members of the EMA’s Management Board created a conflict of interests for those two people and infringed the principle of impartiality incumbent on members of the pre-selection panel. That was all the more so in the present case since two other members of the EMA’s Management Board, namely Mr B and Mr C, had also applied for the post. Thus, by selecting members of the EMA’s Management Board as members of the pre-selection panel, the Commission, in breach of the principle of sound administration, allowed the abovementioned applications by Mr B and Mr C to enjoy favourable treatment.

78      The applicant adds that, through the appointment of two members of the EMA’s Management Board as members of the pre-selection panel, it was members of the EMA’s Management Board who ‘screened’ the various applications and interviewed the candidates at the pre-selection stage, without appropriate authorisation, since that stage took place within the Commission and not before the Management Board. By substituting the assessment of two members of the EMA’s Management Board for that of the pre-selection panel the Commission committed a misuse of powers and an abuse of procedure and infringed the principles of equal treatment, sound administration and division of responsibilities between the EMA’s Management Board and the pre-selection panel.

79      The Commission contends in response that there is no legal provision that prohibits the appointment of a member of the EMA’s Management Board as a member of the pre-selection panel. Nor is there any rule prohibiting members of the EMA’s Management Board from applying for the post of Executive Director of the EMA. Consequently, the fact that two members of the EMA’s Management Board were appointed members of the pre-selection panel and examined and short-listed candidates, including Mr B and Mr C, who were also members of the EMA’s Management Board, does not infringe any legal provision.

80      The Commission adds that, when it comes to appointing the Executive Director of an agency in a highly specialist field, the pre-selection panel must be composed of experts in the relevant field, occupying senior positions. Thus, in the present case, the members of the pre-selection panel belonged to the senior management of DG Health and of another scientific Directorate-General of the Commission, namely the Directorate-General for Research and Innovation, and it was precisely because they belonged to the senior management of the Commission and possessed the necessary qualifications and experience that certain members of the pre-selection panel were also members of the EMA’s Management Board. The experts suitable for appointment as members of the pre-selection panel belonged to a small circle, and it is not surprising therefore that they knew, by reputation or personally, one or other of the candidates. In the present case, the appointment of Ms D and Mr E, the Director General and an official of DG Health, respectively, who were also members of the EMA’s Management Board and experts in the field, as members of the pre-selection panel was therefore objectively justified and indeed necessary. According to the Commission, that in itself is not sufficient for the conclusion to be drawn that there was a lack of impartiality or that there was a conflict of interests or any irregularity. Such an allegation should be made only on the basis of specific evidence of the existence of such an irregularity and its impact on the selection procedure, which the applicant has failed to provide.

–       Findings of the Tribunal

81      With regard to competitions, it has been held that the wide discretion enjoyed by a competition selection board in determining the procedures for and detailed content of the oral tests to be undergone by the candidates must be counterbalanced by scrupulous observance of the rules governing the organisation of those tests (judgments in Girardot v Commission, T‑92/01, EU:T:2002:220, paragraph 24, and Christensen v Commission, T‑336/02, EU:T:2005:115, paragraph 38).

82      It is settled case-law that a selection board in a competition is required to ensure that its assessments of all the candidates examined in the oral tests are made in conditions of equality and objectivity (judgment in Pantoulis v Commission, T‑290/03, EU:T:2005:316, paragraph 90).

83      Although in the present case the pre-selection panel is not a selection board and its opinion is not binding either on the CCA or on the Commission, that case-law may still be applied in the present case, since the purpose of the pre-selection panel, like that of a selection board, was to choose the best candidates from among those who applied following the publication of the vacancy notice in question and it had significant discretion when organising the pre-selection tests (see, with regard to an internal recruitment selection panel, judgment in CG v EIB, F‑115/11, EU:F:2014:187, paragraph 60).

84      Consequently, it was for the Commission, pursuant to the principles of sound administration and equal treatment, to ensure that the first stage of the selection procedure, taking place before the pre-selection panel, was properly organised. That required that all members of the pre-selection panel appointed by the Commission had the necessary independence to preclude any doubt as to their objectivity (see judgment in CG v EIB, EU:F:2014:187, paragraph 61).

85      Moreover, it should be noted that the principle of sound administration, entailing a duty on the competent institution to examine carefully and impartially all the relevant aspects of the individual case, is enshrined in the Charter of Fundamental Rights of the European Union, which, since the entry into force on 1 December 2009 of the Treaty of Lisbon, has the same legal value as the Treaties, and Article 41 thereof, entitled ‘Right to good administration’, provides that every person has the right to have his or her affairs handled impartially by the institutions, bodies, offices and agencies of the Union.

86      The Tribunal must therefore ascertain whether the pre-selection panel was formed and functioned properly, complying in particular with its duty to act impartially, compliance with such duty being one of the rules which govern the proceedings of selection boards in competitions and, by analogy, the proceedings of pre-selection panels, and which are amenable to review by the Courts of the European Union (see, with regard to selection boards, order in Meierhofer v Commission, F‑74/07 RENV, EU:F:2011:63, paragraph 62).

87      In the present case, it is clear, first, from point 7.2 of the Guidelines, that the pre-selection panel starts the selection procedure by examining with the aid of a check-list whether candidates meet the eligibility criteria and then, on the basis of the selection criteria contained in the vacancy notice, draws up an evaluation grid which allows it to compare the candidates’ profiles with the profile sought and with the specific qualifications required in that notice. At the end of that assessment, the pre-selection panel draws up an initial short-list of candidates who are considered to correspond most closely to the profile sought and calls them for interview. After the interviews, it sends a full report to the CCA containing information on each interview, a qualitative assessment of all the candidates, whether or not they have been interviewed, and a draft list of the candidates considered to be best qualified. Secondly, it is clear from Article 64 of Regulation No 726/2004 and from point 10.3 of the Guidelines that the EMA’s Management Board, for its part, is required to select the Executive Director from among the candidates proposed by the Commission.

88      The pre-selection panel is therefore competent to recommend several candidates to the CCA, although the decision on the appointment of the Executive Director of the EMA lies with the EMA’s Management Board. Consequently, the question is whether Ms D and Mr E, who were at the same time members of the pre-selection panel, the body making the proposal, and members of the EMA’s Management Board, the body taking the decision, complied with their duty of impartiality in the light of the very distinct competences of the pre-selection panel and the EMA’s Management Board.

89      In that regard, the Tribunal notes that, although the draft list of candidates recommended by the pre-selection panel is not binding either on the CCA or on the Commission, that draft list and the qualitative assessment of all the candidates which the pre-selection panel includes in its report have a definite importance as regards the ensuing stage of the pre-selection procedure, since, first, the CCA is required to take them into consideration and, secondly, the portfolio Commissioner will, according to point 8.3 of the Guidelines, only interview candidates who have been short-listed by the CCA in its final opinion. Consequently, there is no denying that the pre-selection panel exerts a decisive influence over the final list of candidates proposed to the EMA’s Management Board by the Commission.

90      Similarly, the Tribunal finds, first, that the members of the pre-selection panel who are also members of the EMA’s Management Board will be able to vote, at the meeting of the Management Board, in person or through their alternate, in favour of the appointment of one of the candidates short-listed by the Commission. The Tribunal notes, secondly, that the members of the EMA’s Management Board may play a particularly important part in the Management Board’s discussions, irrespective of whether or not they exercise their right to vote, and that in any event they are in direct contact with the other members of the Management Board.

91      In the light of the above considerations, the conclusion must be drawn that combination of the functions of member of the pre-selection panel with those of member of the EMA’s Management Board may compromise the independence and objectivity of the persons who combine those functions.

92      Consequently, without passing any judgment on the content of the discussions which took place among the members of the pre-selection panel and on the positions taken by the individual members of that panel, including those taken by Ms D and Mr E, the conclusion must be drawn that Ms D and Mr E, by the mere fact of sitting on the pre-selection panel, infringed their duty of impartiality. As a consequence, since each of the members of the pre-selection panel must possess the necessary independence to preclude the objectivity of the pre-selection panel as a whole being compromised, it must be held that the duty of impartiality of the pre-selection panel as a whole was infringed.

93      That finding cannot be called into question by the Commission’s arguments.

94      First, as regards the argument that the members of the EMA’s Management Board who had been appointed as members of the pre-selection panel did not in any event represent the EMA’s Management Board on the pre-selection panel and did not act on its behalf, since the EMA’s Management Board was in fact represented on the pre-selection panel by the observer, in the present case Mr A, suffice it to say that Mr A’s participation in the proceedings of the pre-selection panel as an observer is not called into question by the applicant. As was held in paragraph 92 above, the mere fact that Ms D and Mr E, both members of the EMA’s Management Board, sat on the pre-selection panel constituted an infringement of their duty of impartiality. Moreover, it is apparent from the documents in the case that on 5 May and 8 June 2011 Ms D took part in meetings of the EMA’s Management Board whose purpose was to appoint the new Executive Director of the EMA and that she therefore took part in interviewing the four candidates proposed in the Commission’s decision of 20 April 2011, and in the discussions leading up to the appointment of Mr C. This shows that the applicant was fully entitled to doubt the impartiality with which Ms D chaired the proceedings of the pre-selection panel.

95      Next, the Commission’s argument that the fact that only two of the 35 members of the EMA’s Management Board were also members of the pre-selection panel does not support the allegation that members of the EMA’s Management Board substituted their assessment for that of the pre-selection panel must also be rejected. Even if neither Ms D nor Mr E had taken part in the meetings of the EMA’s Management Board on 5 May and 8 June 2011, they did none the less take part in meetings of the pre-selection panel and were able, as members of that panel, to exert an influence over the assessment of each of the candidates by the other members of the pre-selection panel.

96      It is also necessary to reject the Commission’s argument that the appointment of Ms D and Mr E as members of the pre-selection panel was objectively justified, and even necessary, since they were both experts in the field. As the Commission acknowledged at the hearing, it was not impossible to appoint as participants on the pre-selection panel experts who were not members of the EMA’s Management Board. Moreover, the Tribunal observes that under the Guidelines it is possible to avoid members of the pre-selection panel also being members of the EMA’s Management Board. First, point 7.1 of the Guidelines, allows the parent Directorate-General to select members of the pre-selection panel from among a number of senior management officials, stating that the pre-selection panel is to comprise the Director General or the Deputy Director General of the parent Directorate-General, a Director from the parent Directorate-General and a Director from another Directorate-General. Secondly, that provision also states that the members of the pre-selection panel are to be appointed ‘[a]s a general rule’ from among the abovementioned officials. Consequently, if it happens, as in the present case, that the persons listed in point 7.1 of the Guidelines, namely the Director General, the Deputy Director General and a Director from the parent Directorate-General, are already members of the Management Board of the agency concerned, other persons may be appointed as members of the pre-selection panel.

97      Similarly, it is necessary to reject the Commission’s argument that there is no rule that prevents members of the EMA’s Management Board from being appointed as members of the pre-selection panel. The combination of both those functions in a single person, as the Tribunal found above, constitutes an infringement of the pre-selection panel’s duty of impartiality and is therefore in breach of Article 41 of the Charter.

98      Lastly, the Commission’s argument that Article 11a of the Staff Regulations constitutes a safeguard for the impartiality of members of the pre-selection panel must also be rejected. Although, Article 11a of the Staff Regulations provides that an official is required not to deal with a matter in which he has any personal interest such as to impair his independence, and although it is clear from the documents in the case that Mr A and a member of the pre-selection panel did not take part in an interview with one of the candidates, none the less Ms D and Mr E, regardless of Article 11a of the Staff Regulations, raised no objection to their appointment as members of the pre-selection panel, took part in all the interviews with the candidates and, in the case of Ms D, did not declare, under Article 11(3) of the Rules of Procedure of the Management Board, any interest that could potentially be prejudicial to her independence at the meetings of the EMA’s Management Board on 5 May and 8 June 2011.

99      In the light of the above considerations, the second part of the first plea, based on combination of the functions of member of the EMA’s Management Board and member of the pre-selection panel, must be declared well-founded.

100    As a consequence, the claim for annulment of the Commission’s decision of 20 April 2011 must be upheld, without the need to examine either the first part of the first plea, or the other pleas put forward.

 Sixth head of claim: annulment of the Management Board’s decision of 6 October 2011

101    It is clear from Article 64 of Regulation No 726/2004, further developed by the Guidelines, that the EMA’s Management Board was only permitted to appoint as Executive Director of the EMA one of the candidates on the short-list adopted in the Commission’s decision of 20 April 2011. That was what happened in the present case, since the Management Board’s decision of 6 October 2011 appointed Mr C, who appeared on the list adopted by the Commission’s decision of 20 April 2011. Since the Tribunal found in the preceding paragraph that the Commission’s decision of 20 April 2011 must be annulled, it must also be found that the Management Board’s decision of 6 October 2011 should similarly be annulled.

102    As a consequence, the claim for annulment of the Management Board’s decision of 6 October 2011 must also be upheld.

3.     The claim for compensation

 Arguments of the parties

103    The applicant contends, in essence, that the Commission’s decision of 20 April 2011 and the Management Board’s decision of 6 October 2011 caused him non-material damage, although he does not put a figure on that damage.

104    The Commission and the EMA contend that the claim for compensation should be rejected as unfounded.

 Findings of the Tribunal

105    It has been held that the annulment of an unlawful measure may constitute, in itself, adequate and, in principle, sufficient compensation for all non-material damage which that measure may have caused. That would not apply, however, where the applicant shows that he has suffered non-material damage which is separable from the unlawfulness which is the basis for the annulment and which is incapable of being entirely repaired by that annulment (judgment in Michail v Commission, T‑49/08 P, EU:T:2009:456, paragraph 88).

106    Since the Commission’s decision of 20 April 2011 and the Management Board’s decision of 6 October 2011 have been annulled, the Tribunal must therefore undertake such an examination.

107    In the present case, the applicant has not expanded on his claim for compensation. Nor is it clear from his pleadings that there exists any non-material damage which is separable from the unlawfulness which is the basis for the annulment of the Commission’s decision of 20 April 2011 and the Management Board’s decision of 6 October 2011 and which is incapable of being entirely repaired by the annulment of those two decisions. The Tribunal takes the view, therefore, that any non-material damage that the applicant might have suffered due to the unlawfulness of those decisions is adequately and sufficiently repaired by their annulment.

108    It is clear from all the above considerations that the claim for compensation must be rejected.

 Costs

109    Pursuant to Article 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102 of the Rules of procedure, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.

110    It follows from the grounds set out in the present judgment that, as the action has been essentially successful, the Commission and the EMA are the unsuccessful parties. Furthermore, in his pleadings the applicant has expressly applied for the Commission and the EMA to be ordered to pay the costs. Since the circumstances of this case do not warrant application of the provisions of Article 102 of the Rules of Procedure, the Commission and the EMA must pay their own costs, including those they incurred in the proceedings for interim relief, and must each pay an equal share of the costs incurred by the applicant, including those he incurred in the proceedings for interim relief.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (Second Chamber)

hereby:

1.      Annuls the European Commission’s decision of 20 April 2011, by which it proposed to the Management Board of the European Medicines Agency a list of four candidates recommended by the pre-selection panel and confirmed by the Consultative Committee on Appointments;

2.      Annuls the decision of the Management Board of the European Medicines Agency of 6 October 2011 appointing the Executive Director;

3.      Dismisses the action as to the remainder;

4.      Declares that the European Commission and the European Medicines Agency are to bear their own costs and orders them to each pay half of the costs incurred by Mr Hristov.

Rofes i Pujol

Bradley

Svenningsen

Delivered in open court in Luxembourg on 13 November 2014.

W. Hakenberg

 

      K. Bradley

Registrar

 

      President

* Language of the case: Bulgarian.

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